Concourt rules Zuma tax records may be revealed in the ‘public interest’

The Constitutional Court has ruled that sections of the Promotion to Access of Information Act (Paia) and the Tax Administration Act, which completely disallow access to a third party’s tax records, are invalid.

The court ruled that the law should allow for tax records to be accessed in limited circumstances and in the public interest

The case is a result of a request by the Financial Mail and the Amabhungane Centre for Investigative Journalism to access former president Jacob Zuma’s tax records. While the judgment has personal implications for Zuma, the journalist Warren Thompson can now go back to the SA Revenue Service (Sars) to request to view the record of Zuma’s taxes.  

The decision means that both pieces of legislation must now be amended to allow for access to tax records in the public interest.

In a majority judgment penned and delivered by Justice Jody Kollapen, the court agreed that Sections 35 and 36 of Paia and sections 67 and 69 of the Tax Administration Act are in conflict with section 32 of the Constitution. 

Section 32 of the Constitution says that “everyone has the right of access to: (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights.” 

The High Court in Pretoria made an initial ruling finding the sections unconstitutional in November 2021.

Read more in Daily Maverick: Zuma tax records ruling: Why the ensuing panic over taxpayer confidentiality is misconceived

Thompson had applied to access Zuma’s tax records, in terms of the Promotion of Access to Information Act, following the publication of Jacques Pauw’s book, The President’s Keepers. The book had made allegations that Zuma was not tax compliant. 

Read more in Daily Maverick: Book Extract: Jacques Pauw’s The President’s Keepers – The gentleman gangster and his donkey

The SA Revenue Service (Sars) denied the request, saying Zuma is entitled to privacy.

As a result of this denial, Financial Mail and its parent company Arena Holdings, challenged the constitutionality of the legislation that allowed Sars to deny the request. 

At the time of the argument, Zuma denied this saying the allegations emanated from unnamed sources. He also argued that the amount of tax owed by him was not specified. He argued that the request to access his tax records infringed on his rights to privacy. 

However, Kollapen said the majority of the court felt there was a need to strike a balance between the right to privacy and the right to access to information. 

Read more in Daily Maverick: President’s Keepers: Why Tom Moyane might have a legal duty to publish President Jacob Zuma’s tax records

“The majority judgment emphasises the importance of the rights to privacy, access to information and freedom of expression. It holds that these rights achieve different but legitimate and interconnected individual and societal interests. It holds that the case is about the balance to be struck between these competing rights,” Justice Kollapen said in summarising the judgment.

He added that the “absolute prohibition” in sections 35 and 36 of Paia “cannot withstand constitutional scrutiny”.

“The purpose of the limitation to achieve taxpayer compliance does not pass the limitation test. Limitations may be justified but no case had been passed for an absolute limitation,” he said. 

The court has given Parliament 24 months to amend the legislation. Sars has been ordered to make a new decision on access to Zuma’s tax records, in line with the court order. 

“The request of the applicant under Paia for access to the individual tax returns of (Zuma) for the 2010 to 2018 tax years is referred to the first respondent (Sars) for consideration in the light of this order,” Justice Kollapen said. Thompson has been granted a month to supplement his request for information if he so chooses. DM